The act was prompted by the failure of King William III and Queen Mary II, as well as of Mary's sister Queen Anne, to produce any surviving children, and the Roman Catholic religion of all other members of the House of Stuart. The line of Sophia of Hanover was the most junior among the Stuarts, but consisted of convinced Protestants. Sophia died on 8 June 1714, before the death of Queen Anne on 1 August 1714, at which time Sophia's son duly became King George I and started the Hanoverian dynasty.

Under the Act of Settlement anyone who becomes a Roman Catholic, or who marries one, becomes disqualified to inherit the throne. The act also placed limits on both the role of foreigners in the British government and the power of the monarch with respect to the Parliament of England, though some of those provisions have been altered by subsequent legislation.

Following the Glorious Revolution, the line of succession to the English throne was governed by the Bill of Rights 1689, which declared that the flight of James II from England to France during the revolution amounted to an abdication of the throne and that James' son-in-law and nephew[6]William of Orange, and his wife, James' daughter, Mary, were James' successors, who ruled jointly as William III and Mary II. The Bill of Rights also provided that the line of succession would go through their descendants, then through Mary's sister Princess Anne, and her descendants, and then to the issue of William III by a later marriage (if he were to marry again after the death of Mary II). During the debate, the House of Lords had attempted to append Sophia and her descendants to the line of succession, but the amendment failed in the Commons.[7]

Mary II died childless in 1694, after which William III did not remarry. In 1700, Prince William, Duke of Gloucester, who was the only child of Princess Anne to survive infancy, died of a fever at the age of 11. Thus, Anne was left as the last remaining legal heir to the throne. The Bill of Rights excluded Catholics from the throne, which ruled out James II and his descendants. However, it also provided for no further succession after Anne. Parliament thus saw the need to settle the succession on Sophia and her descendants, and thereby guarantee the continuity of the Crown in the Protestant line.

The monarch "shall join in communion with the Church of England." This was intended to avoid a Roman Catholic monarch. Along with James II's perceived despotism, his religion was the main cause of the Glorious Revolution of 1688, and the previous linked religious and succession problems which had been resolved by the joint monarchy of William and Mary.

If a person not native to England comes to the throne, England will not wage war for "any dominions or territories which do not belong to the Crown of England, without the consent of Parliament." This was far-sighted, because when a member of the House of Hanover ascended the British throne, he would retain the territories of the Electorate of Hanover (in what is now Lower Saxony). This provision has been dormant since Queen Victoria ascended the throne, because she did not inherit Hanover under the Salic Laws of the German states.

All government matters within the jurisdiction of the Privy Council were to be transacted there, and all council resolutions were to be signed by those who advised and consented to them. This was because Parliament wanted to know who was deciding policies, as sometimes councillors' signatures normally attached to resolutions were absent. This provision was repealed early in Queen Anne's reign, as many councillors ceased to offer advice and some stopped attending meetings altogether.[9]

No foreigner, even if naturalised (unless born of English parents) shall be allowed to be a Privy Councillor or a member of either House of Parliament, or hold "any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him." Subsequent nationality laws made naturalised citizens the equal of those native born, and this provision no longer applies.

No person who has an office under the monarch, or receives a pension from the Crown, can be a Member of Parliament (MP). This provision was inserted to avoid unwelcome royal influence over the House of Commons. It remains in force, but with several exceptions. (As a side effect, this provision means that MPs seeking to resign from parliament can get round the age-old prohibition on resignation by obtaining a sinecure in the control of the Crown; while several offices have historically been used for this purpose, two are currently in use: appointments generally alternate between the stewardships of the Chiltern Hundreds and of the Manor of Northstead.[10])

Judges' commissions are valid quamdiu se bene gesserint (during good behaviour) and if they do not behave themselves, they can be removed only by both Houses of Parliament, or the one House of Parliament, depending on the legislature's structure. This provision was the result of various monarchs influencing judges' rulings, and its purpose was to assure judicial independence.

No pardon by the monarch can save someone from being impeached by the House of Commons.

For different reasons, various constitutionalists have praised the Act of Settlement: Henry Hallam called the Act "the seal of our constitutional laws" and David Lindsay Keir placed its importance above the Bill of Rights of 1689.[11] Naamani Tarkow has written: "If one is to make sweeping statements, one may say that, save Magna Carta (more truly, its implications), the Act of Settlement is probably the most significant statute in English history".[12]

Facsimile of the Act of Settlement sent to Electress Sophia of Hanover

Sophia of the Palatine, later Electress of Hanover; portrait by her sister, Louise Hollandine, c. 1644

The Act of Settlement was, in many ways, the major cause of the union of Scotland with England and Wales to form the Kingdom of Great Britain. The Parliament of Scotland was not happy with the Act of Settlement and, in response, passed the Act of Security in 1704, through which Scotland reserved the right to choose its own successor to Queen Anne. Stemming from this, the Parliament of England decided that, to ensure the stability and future prosperity of Great Britain, full union of the two parliaments and nations was essential before Anne's death.

It used a combination of exclusionary legislation (the Alien Act of 1705), politics, and bribery to achieve this within three years under the Act of Union 1707. This success was in marked contrast to the four attempts at political union between 1606 and 1689, which all failed owing to a lack of political will in both kingdoms. By virtue of Article II of the Treaty of Union, which defined the succession to the throne of Great Britain, the Act of Settlement became part of Scots Law as well.

In addition to James II (who died a few months after the Act received the royal assent) and his Roman Catholic children Prince James and the Princess Royal, the Act also excluded the descendants of King James's sister Henrietta, the youngest daughter of Charles I. Henrietta's daughter Anne was then the Queen of Sardinia and a Roman Catholic; subsequent Jacobite pretenders are descended from her.

Since the Act's passing the most senior living member of the Royal Family to have married a Roman Catholic, and thereby to have been removed from the line of succession, is Prince Michael of Kent, who married Baroness Marie-Christine von Reibnitz in 1978; he was fifteenth in the line of succession at the time.

The next most senior living descendant of the Electress Sophia who is ineligible to succeed on this ground is George Windsor, Earl of St Andrews, the eldest son of Prince Edward, Duke of Kent, who married the Roman Catholic Sylvana Palma Tomaselli in 1988; who would otherwise be 29th in the line of succession. His son, Lord Downpatrick, converted to Roman Catholicism in 2003 and is the most senior descendant of Sophia to be barred as a result of his religion. More recently, Peter Phillips, the son of Anne, Princess Royal, and eleventh in line to the throne, married Autumn Kelly; Kelly had been brought up as a Roman Catholic, but she converted to Anglicanism prior to the wedding. Had she not done so, Phillips would have forfeited his place in the succession upon their marriage.

In the Australian Capital Territory, the Act of Settlement was, on 11 May 1989, converted, from an act of the Parliament of England into an ACT enactment, by section 34(4) of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth), and then renamed The Act of Settlement 1700 by the Legislation Act 2001.[13]

Challenges have been made against the Act of Settlement, especially its provisions regarding Roman Catholics and preference for males. However, legislating for alterations to the Act is a complex process, since the Act is a common denominator in the shared succession of all the Commonwealth realms. The Statute of Westminster 1931 acknowledges by established convention that any changes to the rules of succession may be made only with the agreement of all of the states involved, with concurrent amendments to be made by each state's parliament or parliaments. Further, as the current monarch's eldest child and, in turn, his eldest child, are Anglican males, any change to the succession laws would have no immediate implications. Consequently, there was little public concern with the issues and debate had been confined largely to academic circles until, in November 2010, the announcement that Prince William was to marry. This raised the question of what would happen if he were to produce first a daughter and then a son.

In October 2011 the Australian federal government was reported to have reached an agreement with all of the states on potential changes to their laws in the wake of amendments to the Act of Settlement.[16] The practice of the Australian states—for example, New South Wales and Victoria[17][18]—has been, when legislating to repeal some imperial statutes so far as they still applied in Australia, to provide that imperial statutes concerning the royal succession remain in force.

The legal process required at the federal level remains unclear. The Australian constitution, as was noted during the crisis of 1936, contains no power for the federal parliament to legislate with respect to the monarchy.[19] Everything thus turns upon the status and meaning of clause 2 in the Commonwealth of Australia Constitution Act 1900, which provides: "The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom."[20] Anne Twomey reviews three possible interpretations of the clause.[19] First: it "mandates that whoever is the sovereign of the United Kingdom is also, by virtue of this external fact, sovereign of Australia"; accordingly, changes to British succession laws would have no effect on Australian law, but if the British amendment changed the sovereign, then the new sovereign of the United Kingdom would automatically become the new sovereign of Australia. Second, it is "merely an interpretative provision", operating to ensure that references to "the Queen" in the Constitution are references to whoever may at the time be the incumbent of the "sovereignty of the United Kingdom" as determined with regard to Australia, following the Australia Act 1986, by Australian law. Or, third, it incorporates the United Kingdom rules of succession into the Commonwealth of Australia Constitution Act, which itself can now be altered only by Australia, according to the Australia Act 1986; in that way, the British rules of succession have been patriated to Australia and, with regard to Australia, are subject to amendment or repeal solely by Australian law. However, Twomey expresses confidence that, if the High Court of Australia were to be faced with the problems of covering clause 2, it would find some way to conclude that, with regard to Australia, the clause is subject solely to Australian law.[21] Canadian scholar Richard Toporoski theorised in 1998 that "if, let us say, an alteration were to be made in the United Kingdom to the Act of Settlement 1701, providing for the succession of the Crown... [i]t is my opinion that the domestic constitutional law of Australia or Papua New Guinea, for example, would provide for the succession in those countries of the same person who became Sovereign of the United Kingdom."[3]

In Canada, where the Act of Settlement is now a part of Canadian constitutional law, Tony O'Donohue, a Canadian civic politician, took issue with the provisions that exclude Roman Catholics from the throne, and which make the monarch of Canada the Supreme Governor of the Church of England, requiring him or her to be an Anglican. This, he claimed, discriminated against non-Anglicans, including Catholics, who are the largest faith group in Canada.[22] In 2002, O'Donohue launched a court action that argued the Act of Settlement violates the Canadian Charter of Rights and Freedoms, but the case was dismissed by the court.[23] It found that, as the Act of Settlement is part of the Canadian constitution, the Charter of Rights and Freedoms, as another part of the same constitution, does not have supremacy over it. Also, the court noted that, while Canada has the power to amend the line of succession to the Canadian throne, the Statute of Westminster stipulates that the agreement of the governments of the fifteen other Commonwealth realms that share the Crown would first have to be sought if Canada wished to continue its relationship with these countries. An appeal of the decision was dismissed on 16 March 2005.[24] Some commentators state that, as a result of this, any single provincial legislature could hinder any attempts to change this Act, and by extension, to the line of succession for the shared crown of all 16 Commonwealth realms.[25][26][27][28][29] Others contend that that is not the case, and changes to the succession instituted by an Act of the Parliament of Canada "[accord] with the convention of symmetry that preserves the personal unity of the British and Dominion Crowns."[30]

With the announcement in 2007 of the engagement of Peter Phillips to Autumn Kelly, a Roman Catholic and a Canadian, discussion about the Act of Settlement was revived. Norman Spector called in The Globe and Mail for Prime MinisterStephen Harper to address the issue of the Act's bar on Catholics, saying that Phillips' marriage to Kelly would be the first time the provisions of the act would bear directly on Canada—Phillips would be barred from acceding to the Canadian throne because he married a Roman Catholic Canadian.[22] (In fact, the Earl of St. Andrews had already lost his place in the line of succession when he married the Roman Catholic Canadian Sylvana Palma Tomaselli in 1988, but St. Andrews' place in the line of succession was significantly lower than Phillips'.) Criticism of the Act of Settlement due to the Phillips-Kelly marriage was muted when Autumn Kelly converted to Anglicanism shortly before her marriage, thus preserving her husband's place in the line of succession.

From time to time there has been debate over repealing the clause that prevents Roman Catholics, or those who marry one, from ascending to the British throne. Proponents of repeal argue that the clause is a bigoted anachronism; Cardinal Winning, who was leader of the Roman Catholic Church in Scotland, called the act an "insult" to Catholics. Cardinal Murphy-O'Connor, the leader of the Roman Catholic Church in England, pointed out that Prince William (later the Duke of Cambridge) "can marry by law a Hindu, a Buddhist, anyone, but not a Roman Catholic".[31] Opponents of repeal, such as Enoch Powell and Adrian Hilton, believe that it would lead to the disestablishment of the Church of England as the state religion if a Roman Catholic were to come to the throne. They also note that the monarch must swear to defend the faith and be a member of the Anglican Communion, but that a Roman Catholic monarch would, like all Roman Catholics, owe allegiance to the Pope. This would, according to opponents of repeal, amount to a loss of sovereignty for the Anglican Church.

When in December 1978 there was media speculation that Prince Charles might marry a Roman Catholic, Powell defended the provision that excludes Roman Catholics from ascending the throne, claiming his objection was not rooted in religious bigotry but in political considerations. He stated a Roman Catholic monarch would mean the acceptance of a source of authority external to the realm and "in the literal sense, foreign to the Crown-in-Parliament... Between Roman Catholicism and royal supremacy there is, as St Thomas More concluded, no reconciliation". Powell concluded that a Roman Catholic crown would be the destruction of the Church of England because "it would contradict the essential character of that church".

He continued:

When Thomas Hobbes wrote that "the Papacy is no other than the ghost of the deceased Roman Empire sitting crowned upon the grave thereof", he was promulgating an enormously important truth. Authority in the Roman Church is the exertion of that imperium from which England in the 16th century finally and decisively declared its national independence as the alter imperium, the "other empire", of which Henry VIII declared "This realm of England is an empire" ... It would signal the beginning of the end of the British monarchy. It would portend the eventual surrender of everything that has made us, and keeps us still, a nation.[32]

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

As the Convention nowhere lists the right to succeed to the Crown as a human right, the challenge was rejected.

Adrian Hilton, writing in The Spectator in 2003, defended the Act of Settlement as not "irrational prejudice or blind bigotry," but claimed that it was passed because "the nation had learnt that when a Roman Catholic monarch is upon the throne, religious and civil liberty is lost." He points to the Pope's claiming universal jurisdiction, and Hilton argues that "it would be intolerable to have, as the sovereign of a Protestant and free country, one who owes any allegiance to the head of any other state" and contends that, if such situation came about, "we will have undone centuries of common law." He said that because the Roman Catholic Church does not recognise the Church of England as an apostolic church, a Roman Catholic monarch who abided by their faith's doctrine would be obliged to view Anglican and Church of Scotland archbishops, bishops, and clergy as part of the laity and therefore "lacking the ordained authority to preach and celebrate the sacraments." (Hilton noted that the Church of Scotland's Presbyterian polity does not include bishops or archbishops.) Hilton said a Roman Catholic monarch would be unable to be crowned by the Archbishop of Canterbury and notes that other European states have similar religious provisions for their monarchs: Denmark, Norway, and Sweden, whose constitutions compel their monarchs to be Lutherans; the Netherlands, which has a constitution requiring its monarchs be members of the Protestant House of Orange; and Belgium, which has a constitution that provides for the succession to be through Roman Catholic houses.[35]

In December 2004, a private member's bill—the Succession to the Crown Bill—was introduced in the House of Lords. The government, headed by Tony Blair, blocked all attempts to revise the succession laws, claiming it would raise too many constitutional issues and it was unnecessary at the time. In the British general election the following year, Michael Howard promised to work towards having the prohibition removed if the Conservative Party gained a majority of seats in the House of Commons, but the election was won by Blair's Labour Party. Four years later, plans drawn up by Chris Bryant were revealed that would end the exclusion of Catholics from the throne and end the doctrine of agnatic (male-preference) primogeniture in favour of absolute primogeniture, which governs succession solely on birth order and not on sex.[36] The issue was raised again in January 2009, when a private members bill to amend the Act of Succession was introduced in parliament.

Later the same year, the Deputy Prime Minister of the United Kingdom, Nick Clegg, announced that the government was considering a change in the law.[39][40] At approximately the same time, it was reported that British Prime Minister David Cameron had written to each of the prime ministers of the other fifteen Commonwealth realms, asking for their support in changing the succession to absolute primogeniture and notifying them he would raise his proposals at that year's Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia.[41] Cameron reportedly also proposed removing the restriction on successors being or marrying Roman Catholics; however, potential Roman Catholic successors would be required to convert to Anglicanism prior to acceding to the throne. In reaction to the letter and media coverage, Harper stated that, this time, he was "supportive" of what he saw as "reasonable modernizations".[42]

At CHOGM on 28 October 2011, the prime ministers of the other Commonwealth realms agreed to support Cameron's proposed changes to the Act.[43][44][45] The bill put before the Parliament of the United Kingdom would act as a model for the legislation required to be passed in at least some of the other realms, and any changes would only first take effect if the Duke and Duchess of Cambridge were to have a daughter before a son.[16][46][47]

The British group Republic asserted that succession reform would not make the monarchy any less discriminatory.[43] As it welcomed the gender equality reforms, the British newspaper The Guardian criticized the lack of a proposal to remove the ban on Catholics sitting on the throne,[48] as did Alex Salmond, First Minister of Scotland, who pointed out that "It is deeply disappointing that the reform [of the Act of Settlement of 1701] has stopped short of removing the unjustifiable barrier on a Catholic becoming monarch".[33] On the subject, Cameron asserted: "Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church."[33]

^The citation of this act by this short title was authorised by the Short Titles Act 1896, section 1 and first schedule. Due to the repeal of that provision it is now authorised by the Interpretation Act 1978, section 19(2). The short title of this Act is unusual in that it does not contain the year in which it was passed.